Experienced Criminal Lawyers

What Are The Best Defences To Theft Charges?

By: Jillian Williamson

What is theft?

Theft occurs when someone fraudulently and without color of right takes property or converts property to his or her own use. Theft is divided into two categories. They are theft under $5000 and theft over $5000. If you are charged with theft under $5000 and you have no prior involvement with the police, there is a strong chance your case could be diverted out of the criminal justice system. There are a couple of popular diversion programs that may be options such as Alternative Measures Program or Mental Health Diversions Program. If your case is diverted out of the court system then the outcome will ensure you have no criminal record.

What are the Defences to theft charges?

Theft crimes have a variety of defences. The most common are listed below.

Lack of Mens Rea (mental intent)

A common defence to a theft allegation is to demonstrate that there was no mental intent to commit the offence. For example: our firm has helped multiple women who have been shopping at store and have walked out without making any attempt to pay. This constitutes theft IF and only IF she meant to take the items without paying. Several women in this same circumstance had young children distracting her at the time. In these situations this is an accident and a full defence.

Colour of Right

Section 322(1) of the Criminal Code states that “Everyone commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right converts to his use or to the use of another person, anything, whether animate or inanimate, with intent.”

Colour of right is akin to mistake of fact. It refers to a circumstance where you took something under the believe that you had the right to possess it in the first place. Colour of right can arise in a bailment matter. For example a bailment is created when a parking garage attendant (bailee) is given the keys to a motor vehicle by the owner of the vehicle (bailor). If something happens in this situation the garage attendant (bailee) could argue colour of right.

Identity and/or Alibi

In some cases, the prosecution will try to rely on video evidence. If the footage is unclear or of low quality, it may be that identity is in question. If the prosecution cannot prove you took the item in question that leads to doubt. In other circumstances, the prosecution may rely on documentation to prove you were at the place with time and date. If you have an alibi that you were somewhere else that leads to doubt.

Title to the Item in Question

An essential element the prosecution must prove with theft is that you took something belonging to someone else. But there are incidents where people have been charged with theft for stealing an item, they claim is theirs. You cannot commit a criminal theft against yourself. A common example is if your vehicle has been impounded. You legally own this vehicle and so theoretically if you broke into the impound lot and took your car without paying the storage and towing fees you may not think you should be charged with theft. However, in this example you could be charged with theft because the vehicle was legally towed and impounded.

Duress

The defence of duress or compulsion is a complete defence. Section 17 of the Code states in part: “A person who commits an offence under compulsion by threats of immediate death or bodily harm from a person who is present when the offence is committed is excused for committing the offence if the person believes that the threats will be cared out and if the person is not a party to a conspiracy or association whereby the person is subject to compulsion.”

This defence applies if you are compelled to commit the offence due to threats of bodily harm or death. The Alberta Court of Appeal overturned a conviction for theft (a lessor included offence of robbery) in R v Jasman (1985), 60 AR 100 because the jury was required to determine whether there was compulsion by threat. Courts have repeatedly held that individuals should not be held responsible for actions out of a response to a threat of impending harm.

The maximum penalty for theft under $5000 is two years less a day in jail. The maximum penalty for theft over $500 is 10 years in prison. Theft is a serious allegation. A serious lawyer can build a strategic defence.